Luu v. Canada (Minister of Citizenship and Immigration), 2003 FC 1466

Date: 20031216

Docket: IMM-4502-02

Citation: 2003 FC 1466

Ottawa, Ontario, this 16^th day of December, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                                                          TIEN LUU

                                                                                                                                                       Applicant

                                                                                 and

                              THE MINISER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 Tien Luu was born in Vietnam. He arrived in Canada with his family in 1984, having been sponsored by his older brother. He committed a number crimes over the past decade or so and the Minister took steps to remove him from Canada pursuant to the Immigration Act, R.S.C. 1985, c. I-2, s. 27(1)(d) and s. 32(2) (relevant enactments are set out in an Annex). In September 2001, an adjudicator ordered Mr. Luu's deportation.

[2]                 Mr. Luu immediately filed a notice of appeal of the deportation order. The appeal was scheduled to be heard by the Immigration Appeal Division in October 2002. In the interim, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") came into force, specifically, on June 28, 2002. IRPA contains a number of transitional rules, including provisions relating to the continuation or discontinuation of appeals launched under the previous legislation. In September 2002, the Registrar of the Immigration Appeal Division informed Mr. Luu, citing the transitional rules of IRPA, that his appeal was discontinued. Mr. Luu argues that the Registrar misinterpreted those rules. Further, he argues that if the Registrar's decision was correct, then the transitional rules violate the Canadian Bill of Rights, S.C., 1960, c. 44 and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c. 11.

[3]                 I find that the Registrar erred in his interpretation of the transitional rules in IRPA. Accordingly, Mr. Luu is entitled to have his appeal heard and to remain in Canada until it is decided.

Issue

[4]                 This case raises an issue that has been considered and decided by several of my colleagues: Medovarski v. Canada (Minister of Citizenship and Immigration) 2003 FCT 634, [2003] F.C.J. No. 811 (QL) (T.D.); Jones v. Canada (Minister of Citizenship and Immigration) 2003 FCT 661, [2003] F.C.J. No. 876 (QL) (T.D.); Cartwright v. Canada (Minister of Citizenship and Immigration) 2003 FCT 792, [2003] F.C.J. No. 1024 (QL) (T.D.); Nokhodchari v. Canada (Minister of Citizenship and Immigration) 2003 FCT 803, [2003] F.C.J. No. 1075 (QL) (T.D.); Amado-Cordeiro v. Canada (Minister of Citizenship and Immigration) 2003 FC 847, [2003] F.C.J. No. 1087 (QL) (T.D.); Esteban v.Canada (Minister of Citizenship and Immigration) 2003 FC 930, [2003] F.C.J. No. 1181 (QL) (T.D.). The question is whether the transitional rule in s. 196 of IRPA extinguishes appeals by persons in Mr. Luu's situation.

[5]                 The transitional rules under IRPA relating to appeals to the Appeal Division can be summarized as follows:

1.          The general rule is that appeals filed before IRPA came into effect are continued: s. 192. In other words, rights of appeal are generally preserved by IRPA.

2.          There is an exception to the general rule. According to s. 196 of IRPA, appeal rights are lost where two conditions exist:

(i)          The appellant would not be entitled to an appeal according to the new rules in IRPA. Under section 64 of IRPA, no appeal is available to a person who is inadmissible to Canada because of security concerns, violations of human or international rights, serious criminality or organized criminality; and

(ii)         The appellant was not "granted a stay" under the former Act (which provided for stays in various situations, discussed in more detail below).

[6]                 It is only the second condition that is in issue here. Mr. Luu comes within s. 64 of IRPA and clearly would not have a right to appeal under the new law. I need say no more about that aspect of s. 196.

[7]                 The question, then, is whether the second condition exists in Mr. Luu's case: Was he "granted a stay" under the former Act? If so, he would continue to enjoy a right of appeal. If he was not "granted a stay", then the exception to the general rule stipulates that he has lost his right of appeal.

[8]                 The former Act contained various provisions respecting stays. There were two kinds:

·            those imposed by a decision-maker, such as the Appeal Division itself (e.g.: s. 73(1)(c), (d)); and

·            those imposed automatically upon a certain event taking place, such as the filing of a notice of appeal (e.g.: s. 49(1)(b)).

[9]                 The respondent argues that it is only the first kind of stay that matters for purposes of s. 196 of IRPA. In other words, it is only where a person was granted a stay by a decision-maker that IRPA will preserve his or her appeal rights. If a person's stay of removal came about because of an automatic rule of law, such as a stay resulting from the filing of a notice of appeal, the person's appeal rights would be lost because the conditions set out in s. 196 would be satisfied.

[10]            The respondent's argument turns on the meaning of the word "granted". It argues that only a person or body can "grant" something. A person who obtains a stay by operation of law cannot be said to have been "granted" a stay. According to this interpretation, persons who obtained automatic stays under the former Act have lost their appeal rights (assuming the other condition under s. 196 has also been met).

[11]            I cannot find any basis for concluding that the word "granted" in s. 196 requires a decision by a human actor. To my mind, to say that a person was "granted a stay" by the provisions of a statute does no violence to the English language. And the French version of s. 196 is even clearer: the corresponding words are "il ne fait pas l'objet d'un sursis", which are clearly not limited to stays granted by a person or body.

[12]            The respondent argues that if s. 196 is read so as to include automatic as well as discretionary stays then the section would be rendered completely superfluous: few, if any, persons would fall under the exception because all those who filed notices of appeal under the former Act would have their appeals preserved. This, the respondent argues, could not have been the intent of Parliament when it enacted this exception.

[13]            As mentioned, the general rule under IRPA is that appeal rights are preserved. An exception is created by s. 196. To my mind, it is perfectly consistent with the clearly expressed policy of preserving appeal rights to create an exception that is drawn narrowly. In any case, the exception would still have meaning. Snider J. noted in Medovarski, above, that persons who had appeals reinstated after IRPA came into force would be caught by s. 196 (at para. 43). I would also note that there are some exceptions to the automatic stays provided under the former Act (s. 49(1.1)).

[14]            Accordingly, I find that Mr. Luu has not been stripped of his right of appeal. He was granted a stay by virtue of s. 49(1)(b) of the Immigration Act when he filed his notice of appeal and, therefore, does not fall within the terms of s. 196 of IRPA. I will grant his application for judicial review. It is unnecessary for me to address Mr. Luu's other arguments.

[15]            The parties asked me to state a question of general importance in the same terms as in Medovarski, supra:

Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C. 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)?

[16]            I will certify this question.

                                                                        JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is granted.

2.          The applicant has a right of appeal preserved by s. 192 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

3.          The applicant is entitled to remain in Canada until his appeal has been heard and disposed of according to s. 49(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2.

4.          The following question has been certified:

Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C. 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)?

                                                                                                                                     "James W. O'Reilly"     

                                                                                                                                                               Judge                   

                                                                              Annex

                                                                     FEDERAL COURT

             Names of Counsel and Solicitors of Record

DOCKET:                                             IMM-4502-02

STYLE OF CAUSE:                           TIEN LUU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       THURSDAY, JUNE 26, 2003

REASONS FOR JUDGMENT

AND JUDGMENT BY:                     THE HON. MR. JUSTICE O'REILLY

DATED:                                                TUESDAY, DECEMBER 16, 2003

APPEARANCES BY:

Mr. Cecil L. Rotenberg, Q.C.   

Mr. Ron Poulton                                                                             FOR THE APPLICANT

Mr. Ian Hicks                                                                               FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Cecil L. Rotenberg

Barristers & Solicitors

Suite 803 255 Duncan Mill Road

Toronto, ON M3B 3H9                                                                FOR THE APPLICANT

Morris Rosenberg         

Deputy Attorney General of Canada     FOR THE RESPONDENT